Introduction

Complaints [Sections 59 to 66]

Appeals to Court [Sections 67 to 74]

(i) A person who has made a request to a public body for access to a record under Part 2 of FIPPA may make a complaint to the Ombudsman about any decision, act or failure to act of the head of the public body that relates to the request (subsection 59(1)). This can include complaints about:

• an extension of the time period for responding to a request for access to a record under subsection 15(1);
• a refusal to give access to all or part of a record on the ground that information in it is excepted from disclosure;
• a refusal to give access to a record on the ground that the record does not exist;
• a refusal to confirm or deny the existence of a record under subsection 12(2);
• the fees charged for access;
• a failure to respond to a request for access; etc.

(ii) A third party who is given notice under section 33 of FIPPA of a decision by the head of a public body to give access to a record containing information affecting the third party’s privacy or business interests may make a complaint about the decision to give access (subsection 59(2)).

A person who has made a request to a public body for access to a record under Part 2 of FIPPA may make a complaint to the Ombudsman about a refusal by the head of the public body to correct the record under section 39 of FIPPA (subsection 59(1)).

(i) An individual who believes that his or her own personal information has been collected, used or disclosed in violation of Part 3 of FIPPA may make a complaint to the Ombudsman (subsection 59(3)).

(ii) A relative of a deceased individual may make a complaint about the decision of the head of a public body not to disclose personal information about the deceased individual under clause 44(1)(z) of FIPPA (subsection 59(4)).

The Ombudsman may initiate a complaint respecting any matter if the Ombudsman is satisfied there are reasonable grounds to investigate the matter under FIPPA (subsection 59(5)).

Where a person has a right to make a complaint under FIPPA, the complaint may be made by another person who is authorized under section 79 of FIPPA to act on behalf of that person. 1

A complaint to the Ombudsman must be made in the form prescribed by the Access and Privacy Regulation (Manitoba Regulation 64/98 (as amended)). For a copy of the Complaint Form, click here.

A complaint by a person respecting his or her request for access to a record under Part 2 of FIPPA must be delivered to the Ombudsman within 60 days after the person is notified of the decision respecting access by the head of the public body (subsection 60(2)).

If the head of a public body fails to respond to a request for access to a record under Part 2 of FIPPA within the required time, the failure is treated as a decision to refuse access and a complaint must be made within 120 days after the request for access was made (subsection 60(3)).

Where the head of a public body has given notice, under section 33 of FIPPA, to a third party whose privacy or business interests will be affected by the release of a record requested under Part 2 of FIPPA and the head of the public body decides not to give access to the record, the person requesting access may make a complaint to the Ombudsman within 21 days after the notice of refusal is given (subsection 34(5)).

A complaint by a third party respecting a decision of the head of a public body to give access to a record affecting the third party’s privacy or business interests under section 34 of FIPPA must be made to the Ombudsman within 21 days after notice of the head ’s decision is given (subsection 34(4)).

A complaint about a failure to correct a record where there has been a request for access to the record must be delivered to the Ombudsman within 60 days after the person is notified of the decision by the head not to correct the record (subsection 60)(2)).

There is no time limit in FIPPA for making a complaint to the Ombudsman about the collection, use or disclosure of personal information by a public body. However, the Ombudsman may decide not to investigate the complaint if the Ombudsman is of the opinion that the length of time that has elapsed since the date the subject matter of the complaint arose makes an investigation no longer practicable or desirable (clause 63(1)(a)).

As soon as practicable after receiving a complaint, the Ombudsman must notify the head of the public body concerned and any other person who, in the Ombudsman’s opinion, is affected by the complaint (section 61).

The Ombudsman is required to investigate a complaint on receiving it, unless the Ombudsman is of the opinion that:

If the Ombudsman decides not to investigate a complaint, the Ombudsman must inform the complainant and the head  of the public body of the decision, in writing, and must give reasons for the decision (subsection 63(2)).

When investigating a complaint, the Ombudsman may take any steps the Ombudsman considers appropriate to resolve the complaint informally to the satisfaction of the parties and in a manner consistent with the purposes of FIPPA (subsection 62(2)). The purposes of FIPPA are set out in section 2 of the Act.

Note:  The Ombudsman has issued a document entitled "Suggested Format for Providing Records to the Ombudsman's Office in any Investigation of a Refused Access Complaint under FIPPA".  A copy is included in Appendix F.

During an investigation, the Ombudsman is required to give the complainant and the head of the public body concerned an opportunity to make representations (subsection 64(1)).

The Ombudsman may, but is not required to, give any other person the Ombudsman has notified of the complaint an opportunity to make representations (subsection 64(1)).

The Ombudsman may decide whether representations are to be made orally or in writing (subsection 64(2)). Representations may be made to the Ombudsman through legal counsel or through an agent (subsection 64(3)).

No one is entitled to be present during an investigation by the Ombudsman or to have access to or to comment on representations made to the Ombudsman by another person (subsection 64(1)).

The Ombudsman’s investigation of a complaint must be completed, and the Ombudsman must make a report about the investigation, within 90 days after a complaint is made, unless

(a) the Ombudsman’s findings about the complaint; and

(b) any recommendations the Ombudsman considers appropriate about the complaint (subsection 66(1)).

(a) relates to the refusal of access to a record or part of a record under Part 2 of FIPPA, or

(b) is a complaint by a third party who has been notified of a decision by the head of a public body to give access to information affecting the privacy or business interests of the third party,

(a) that the head accepts the recommendations and describing any action the head has taken or proposes to take to implement them; or

(b) the reasons why the head refuses to take action to implement the recommendations (subsection 66(4)).

(a) within 15 days of acceptance, if the complaint is about access, correction of a record or disclosure of personal information about a deceased individual to a relative;

(b) within 45 days in any other case (for example, in the case of a complaint that personal information has been collected, used or disclosed in violation of Part 3 of FIPPA); or

(c) within such longer period of time as the Ombudsman considers reasonable (subsection 66(6)).

(a) the complaint is about a refusal of access to a record or part of a record, or

(b) the complaint is by a third party who has been notified of a decision by the head of a public body to give access to information affecting the privacy or business interests of the third party,

(i) that the complainant may appeal the decision of the head to the Manitoba Court of Queen’s Bench and of the time limit for the appeal; and

(ii) if the Ombudsman so chooses, that the Ombudsman intends to appeal the decision to the court (subsection 66(5)).

(i) a person who has been refused access to a record or part of a record under subsection 8(1) in Part 2 of FIPPA (Access to information) may appeal the refusal of access to the court (clause 67(1)(a));

(ii) a person who is a third party notified under section 33 of Part 2 of FIPPA of a decision by the head  of a public body to give access to information which, if disclosed, would unreasonably invade the privacy of the third party as described in section 17 of FIPPA may appeal the decision to give access to the court (clause 67(1)(b));

(iii) a person who is a third party notified under section 33 of Part 2 of FIPPA of a decision by the head  of a public body to give access to information which would affect the business interests of the third party as described in the exceptions to disclosure in section 18 of FIPPA may appeal the decision to give access to the court (clause 67(1)(b)).

(a) the Ombudsman has obtained the consent of the person who has the right of appeal (subsection 68(1)); and

(b) the Ombudsman is of the opinion that the decision raises a significant issue of statutory interpretation or that an appeal is otherwise clearly in the public interest (subsection 68(3)).

(a) within 30 days after the person received the Ombudsman’s report on an investigation; or

(b) within 30 days after the person received a notice from the Ombudsman about the head ’s response to the Ombudsman’s report; or

(c) within such longer period of time as the court may allow in special circumstances (subsection 67(3)).

(a) on the head of the public body concerned in the appeal;

(b) on the Ombudsman; and

(c) in the case of an appeal brought by a third party notified of a decision to give access to a record, on the person requesting access (subsection 67(5)).

(a) the head of the public body concerned in the appeal; and

(b) the person requesting access, if he or she is not the person who has consented to the Ombudsman bringing the appeal (subsection 68(4)).

(i) If the appeal relates to a decision to give access to a record or part of a record containing personal information about a third party, it is up to the applicant requesting access to prove that disclosure of the information would not be an unreasonable invasion of the third party’s privacy. In this situation, the "burden of proof" is on the applicant requesting access (subsection 70(2)).

(ii) If the appeal relates to a decision to give access to a record or part of a record containing information about a third party that is not personal information (for example, a trade secret of a third party), it is up to the third party to prove that the applicant does not have a right of access to the record or part of the record. In this situation, the "burden of proof" is on the affected third party (subsection 70(3)).

(a) to avoid disclosure of any information the head of a public body is authorized or required to refuse to disclose under Part 2 of FIPPA (clause 72(a)); and

(b) to avoid disclosure as to whether information exists, if the head of a public body is authorized to refuse to confirm or deny that the information exists under subsection 12(2) of FIPPA (clause 72(b)).

(i) receiving representations from one party to the appeal in the absence of the other parties (receiving representations "ex parte");

(ii) conducting hearings in private;

(iii) examining records in private; etc. (section 72).

(a) if the court determines that the head of the public body is authorized or required to refuse access to a record under Part 2, dismiss the appeal; or

(b) if the court determines that the head is not authorized or required to refuse access to all or part of a record under Part 2,